Court of Appeals of Georgia.

A16A0891

Decided: September 15, 2016

Following a traffic stop, Charles Wallace was charged with possession of marijuana with intent to distribute (OCGA § 16–13–30 (j) (1)), driving with a suspended license (OCGA § 40–5–121 (a)), and improper lane change (OCGA § 40–6–48 (1)). Wallace filed a motion to suppress all evidence recovered during the search of his vehicle, challenging the basis for the traffic stop and alleging that law enforcement lacked probable cause to detain him and search his vehicle. The trial court granted the motion to suppress, however, on the basis that the State failed to establish venue at the pre-trial suppression hearing. The State appeals, contending that the trial court misapplied the law when it suppressed the evidence on that basis.1 For the reasons that follow, we reverse the trial court's judgment and remand this case for further proceedings consistent with this opinion.

“When the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court's application of the law to the undisputed facts.” (Citation omitted.) Jones v. State, 291 Ga. 35, 36–37, 727 S.E.2d 456 (2012).

The record shows that on August 27, 2015, two officers of the Atlanta Police Department initiated a traffic stop because the vehicle operated by Wallace made an abrupt and improper lane change without using its turn signal. As the two officers approached Wallace's car, they smelled a strong odor of marijuana coming from inside the vehicle. During initial questioning, Wallace stated that he did not have a driver's license, and a computer check of the identification information that Wallace provided to the officers revealed that his driver's license had been suspended. Based on the officers' detection of the odor of marijuana, Wallace's vehicle was searched and a large vacuum-sealed bag and several smaller sandwich bags containing marijuana, along with a digital scale, were found in a bookbag on the passenger side floorboard of his vehicle. Wallace's person was also searched, and $365 in small denominations were found in his front pocket.

Wallace's written motion to suppress was premised on the grounds that the officers lacked a reasonable basis for the traffic stop and lacked probable cause to detain him and search his vehicle. At the pre-trial hearing on the motion, the State presented evidence that was narrowly tailored for the trial court's consideration of these issues. Although the State established that the traffic stop and the resulting search and seizure occurred in Atlanta on Martin Luther King, Jr. Drive, it is undisputed that the State did not attempt to establish venue in Fulton County.

At the conclusion of the pre-trial hearing, Wallace moved to have the evidence suppressed on the ground that the State did not establish venue. Apparently without addressing the issues raised in the written motion to suppress, the trial court suppressed the evidence and dismissed the case on the narrow basis that the State “failed to establish venue of this case within Fulton County.” This appeal ensued.

1. The State argues that venue is a jurisdictional fact to be proven at trial, and that it has no bearing on the relevant issues of whether the officers had a reasonable basis for the traffic stop or whether the warrantless search of the vehicle was supported by probable cause. Accordingly, the State contends that the trial court erred in granting the motion to suppress on the basis of venue. We agree.

Venue relates to the place of the trial because criminal actions are required to be tried in the county where the crime occurred, unless otherwise provided by law.3 See Ga. Const. of 1983, Art. VI, Sec. II, Par. VI; OCGA § 17–2–2 (a). Accordingly, venue is a jurisdictional fact and an element of the crime which the State must prove beyond a reasonable doubt at trial. See Twitty v. State, 298 Ga. 204, 206, 779 S.E.2d 298 (2015); Graham v. State, 275 Ga. 290, 292, 565 S.E.2d 467 (2002); State v. Hasson, 334 Ga.App. 1, 4, 778 S.E.2d 15 (2015); Mock v. State, 306 Ga.App. 93, 96, 701 S.E.2d 567 (2010). Ultimately, it is up to the trier of fact at trial to determine whether venue has been sufficiently established.4 See Graham, supra. The State did not need to establish venue at the pretrial hearing on Wallace's motion to suppress as it was not relevant to the issues raised in his written motion.

As the issue of venue has no bearing on whether the officers had a reasonable basis for the traffic stop or whether the resulting search of Wallace and his vehicle were supported by probable cause, we find that it was erroneous for the trial court to suppress the evidence on the basis of venue. “[W]here it is apparent that the court rests its judgment on reasons which are erroneous or upon an erroneous legal theory, it commits reversible error.” (Citation and punctuation omitted.) State v. Willis, 184 Ga.App. 639, 641, 362 S.E.2d 444 (1987). In reaching its decision on the narrow grounds stated in its written order, it is apparent that the trial court did not address the merits of the issues raised in Wallace's written motion to suppress. Accordingly, we reverse the trial court's judgment and remand the case with direction that the trial court make a determination on whether the officers had a reasonable basis for the traffic stop and whether the resulting search was supported by probable cause, after consideration of the evidence that was presented at the hearing. See generally, State v. Hogans, 301 Ga.App. 261, 264, 687 S.E.2d 230 (2009); State v. Willis, 207 Ga.App. 76, 77, 427 S.E.2d 306 (1993).

2. The State also argues that the trial court erred in granting the motion to suppress on the basis of venue because Wallace did not raise the issue in his written motion to suppress and, thus, the State was not properly placed on notice that the issue of venue would be raised at the hearing. In light of our holding in Division 1, we need not address this argument.

Judgment reversed and case remanded with direction.

FOOTNOTES

1. Although we extended the time for Wallace to file an appellee brief, he did not file a brief in response to the State's appeal. Additionally, we note that no appearance was made by appellee's counsel at oral argument.

2. We note, of course, that in Georgia the exclusionary rule has been statutorily adopted by the General Assembly.

3. We note that the formal accusation charging Wallace with the stated offenses alleges that the offenses occurred in Fulton County.

4. Notably, even the State's failure to establish venue at trial will not bar the retrial of a criminal defendant for the same offense because the failure to establish venue is a procedural defect which may be cured by the State upon retrial. Stockard v. State, 327 Ga.App. 184, 188–189, 761 S.E.2d 351 (2014); Hudson v. State, 296 Ga.App. 758, 760, 675 S.E.2d 603 (2009). Accord Twitty, supra at 207–208 (2), 779 S.E.2d 298.

Ray, Judge.

Doyle, C.J., and Andrews, P.J., concur.

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